Police v Burgess [2017] WSSC 126 (18 August 2017)

IN THE SUREME COURT OF SAMOA
Police v Burgess [2017] WSSC 126

Case name:	Police v Burgess
Citation:	[2017] WSSC 126
Decision date:	18 August 2017
Parties:	POLICE (Informant) and RUTA BURGESS a.k.a FEAGAIGA MEMEA, female of Vaitele & Tulaele (Defendant)
Hearing date(s):	14-15 June 2017
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Mata Keli Tuatagaloa
On appeal from:
Order:	The defendant is convicted to three (3) years imprisonment for each offending to be served concurrently.
Representation:	A Matalasi for Prosecution Defendant appears in Person
Catchwords:	Theft in a special relationship – volunteer – breach of trust – pre-meditation – significant amount involved –first offender – custodial sentence
Words and phrases:
Legislation cited:	Crimes Act 2013 ss.162; 165(a);
Cases cited:	Bourton v R [2014] NZCA 151 Herbert v R [2015] NZCA 483 R v. Stephen Charles William Smith [2013] NZHC 1341 Tallentine v R [2012] NZCA 610; [2013] 1 NZLR 548
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E
Informant

AND:

RUTA BURGESS, female of Vaitele & Tulaele
Defendant

Counsel:
A Matalasi for Prosecution
Defendant appears in Person

Sentence: 18 August 2017

SENTENCING OF TUATAGALOA J

1. The defendant was found guilty on two charges of theft in a special relationship pursuant to section 162 of the Crimes Act 2013 which section 165 (a) provides for the penalty of maximum ten (10) years imprisonment.
2. The complainant or victim of the offending is the Samoa Commonwealth Youth Games 2015 Company Limited specifically set up to run, administer and facilitate the Commonwealth Youth Games hosted by Samoa in August 2015. The defendant was one of the many volunteers for the Games and she was allocated with two or three other volunteers to assist with the division dealing with Games Transport. After the SCY Games in September, the SCYG office started processing payments for the people whose vehicles were hired.
3. The defendant uplifted two cheques 00857 under the name of Feagaiga Memea and 00858 under the name of Siulagi Paialii. The cheque 00857 was to the amount of $4,450.00 and cheque 00858 was to the amount of $4,100.00. The defendant uplifted both cheques on the same day but at different times. The Finance Manager, Ferila Lokeni released the cheques to the defendant because the defendant whom she knew well at the time as a volunteer stated that she was related to the said people whose names the cheques were made out.
4. It was not until sometime in November 2015 while the SCYG office was compiling their reports and correlating everything that some discrepancies or fraudulent actions came to light or discovered in relation to the documents specific to vehicle hirage such as agreements and payments issued for hirage. It was then also discovered that the defendant Ruta Burgess is the one and same person as Feagaiga Memea. She conceded to uplifting cheque 0857 and using the money but denied cashing and using money from cheque 00858. However, the court found that she cashed and used the money from cheque 00858.
5. Section 162 is a new creature under Crimes Act 2013 that did not exist in the former Crimes Ordinances 1961. As such, there have not been any local sentencing decisions specifically to this type of offending.
6. The prosecution has provided in their Sentencing Submission New Zealand authorities which have dealt with their offending .
   • R v. Stephen Charles William Smith^[1] where the defendant was a director of a company and (with two co-defendants) stole from investors. The defendant was sentenced to 4 years imprisonment.
   • Herbert v R^[2] where the defendant was the sole managing director of a number of insurance broker business. The defendant intentionally dealt with the funds without accounting to the insurers and was sentenced to 4 years imprisonment.
   • Bourton v R^[3] where the defendant was an insurance broker and consultant and later as a business banking manager with Westpac Bank was involved in a number of transactions resulting in a number of charges; amongst were two (2) charges of theft in a special relationship. The defendant was convicted and sentenced to seven and half (7½ ) years of imprisonment.
   • Tallentine v R^[4] where the defendant was the director of a finance company and intentionally stole from the investors funds. The defendant was sentenced to five (5) years imprisonment for two (2) charges of theft in a special relationship.
7. What this Court notes from the New Zealand cases cited is the “special relationship” in that the defendants were all in control or handled transactions involving money or funds belonging to investors or insurers. The present case is different from the cases cited in that the defendant did not handle or manage any of the money or funds. What the court in the present case accepted as a “special relationship” is the defendant’s position as a ‘volunteer’ with the SCYG and stealing from the SCYG 2015 Company Limited.
8. The following is accepted by the court as aggravating factors of this offending:
   • (i) Breach of trust;
   • (ii) Premeditation;
   • (iii) Impact of the offending on the victim company, SCYG (refer to victim impact report); and
   • (iv) The total amount involved of $8550.00 is significant.

The prosecution recommended a starting point of three and half (3½) years imprisonment.

9. The only mitigating factor is the defendant’s first offending status. The defendant is 31 years old and this is the first time she has offended. There is nothing provided to the court that cast doubt to the defendant’s character prior to the offending. I will discount six (6) months from the starting point.
10. I agree with the starting point recommended by the prosecution of three and half (3 ½) years imprisonment, less six (6) months for first offending.
11. The defendant is convicted to three (3) years imprisonment for each offending to be served concurrently.
    

JUSTICE TUATAGALOA

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^[1] R v. Stephen Charles William Smith [2013] NZHC 1341
^[2] Herbert v R [2015] NZCA 483
^[3] Bourton v R [2014] NZCA 151
^[4] Tallentine v R [2012] NZCA 610; [2013] 1 NZLR 548